Opinion
No. 05-09-00296-CR
Opinion Filed January 19, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-80945-07.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
MEMORANDUM OPINION
Appellant Heather Jean-Marie Pirtle appeals from her conviction for driving while intoxicated (DWI). After a trial before the court, Pirtle was found guilty and assessed punishment of 180 days' confinement, probated for two years, and a $2000 fine. In two issues, Pirtle contends the trial court's judgment should be reversed because there was no waiver of a jury trial and she received ineffective assistance of counsel. We affirm the trial court's judgment. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. In her first issue, Pirtle contends that the trial court erred in finding her guilty of DWI without a proper written waiver of jury trial as required by the code of criminal procedure. Pirtle asserts there is no waiver of a jury trial in either the clerk's record or the reporter's record. Waiver of the right to a jury trial "must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State." Tex. Code Crim. Proc. Ann. art. 1.13(a) (West 2005). Absence of a written waiver of jury trial in the record constitutes statutory, not constitutional, error. See Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002). Because this case does not involve constitutional error, harmless error analysis is the proper standard of review. Id.; see also Tex. R. App. P. 44.2(b) (if the error "does not affect substantial rights," it "must be disregarded"). The lack of a written jury waiver is not harmful when the record reflects that the defendant was aware of her right to a jury trial and waived that right. Johnson, 72 S.W.3d at 349. Here, the record reflects that Pirtle was aware of her right to trial by jury, had the opportunity to invoke her right to a jury trial, and waived that right. The docket sheet indicates a jury trial was waived at the time the case was called for trial. Immediately after calling this case to trial, the trial judge stated, "Both parties have signed a written waiver of rights for a jury trial." Pirtle's counsel raised no objection to that statement. Pirtle's counsel advised the trial court, "She knows exactly what she's been charged with. She enters a plea of not guilty and not true." Further, during closing, Pirtle's counsel stated, "Your honor, after Ms. Pirtle's last episode in your report, the waiver of jury trial was discussed in great detail." The formal judgment of the trial court "carries with it a presumption of regularity and truthfulness, and such is never to be lightly set aside." Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex. Crim. App. 1984) (op. on reh'g). When a trial court's judgment explicitly states that a defendant "waived trial by jury," that recitation is "binding in the absence of direct proof of its falsity." Johnson, 72 S.W.3d at 349 (quoting Breazeale, 683 S.W.2d at 450). The original judgment in this case was signed by Pirtle and included Pirtle's thumb print. Pirtle had the opportunity to review that judgment, which stated that Pirtle "knowingly and intelligently waived trial by jury." Pirtle made no objection to the explicit reference to a waiver of a jury trial contained in the judgment. Pirtle's counsel moved for correction of a clerical error in the original judgment that inaccurately stated that Pirtle pleaded guilty. The judgment nunc pro tunc to correct the clerical error in the prior judgment recites that Pirtle "knowingly, voluntarily and intelligently waived a trial by jury, and the State consented to the waiver in writing." Pirtle has not presented any evidence that the recitation concerning the jury trial waiver is false. Our review of the record does not support Pirtle's contention that she never waived trial by jury. Indeed, the record evidences Pirtle understood that she had the right to a jury trial and voluntarily waived that right. Further, absent proof of the contrary, the recitation in the judgment that Pirtle waived her right to a jury trial is binding on this Court. Johnson, 72 S.W.3d at 349. Thus, even if article 1.13(a) was violated, Pirtle was not harmed by the violation because the record reflects she was aware of her right to a jury trial and opted instead for a bench trial. We overrule Pirtle's first issue. Pirtle complains in her second issue that she received ineffective assistance of counsel. She argues that, despite her attorney's examination of a witness laying the foundation for a defense that Pirtle's actions were the result of a seizure instead of intoxication, her attorney failed to call medical or expert witnesses to prove that defense. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Pirtle has the burden to show by a preponderance of the evidence that (i) trial counsel's performance was deficient in that it fell below an objective standard of reasonableness and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether Pirtle received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record; the record must affirmatively demonstrate the alleged ineffectiveness. Id. Because a silent record provides no explanation for counsel's actions, the record on direct appeal usually "will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008) (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)); see Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is oftentimes a more appropriate vehicle than a direct appeal for raising ineffective assistance of counsel claims. See Rylander, 101 S.W.3d at 111 n1. Pirtle contends her counsel should have obtained medical records from her neurologist and should have utilized medical or expert witnesses to support a defense that Pirtle was not intoxicated, but rather suffered a seizure at the time of the 2006 incident resulting in her DWI conviction. Chris Gentz, Pirtle's stepfather, testified Pirtle went to see a neurologist, Dr. Daniel Hobson, in November 2008 before the December 2008 trial of this matter. However, there is no evidence in this record of what Dr. Hobson's medical records would have shown or to what Dr. Hobson would have testified. Accordingly, we cannot ascertain from the record that the neurologist's medical records or testimony would have benefitted the defense by establishing that Pirtle suffered from a seizure rather than intoxication at the time of the 2006 incident. See Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (quoting Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004)) ("When challenging an attorney's failure to call a particular witness, an 'applicant must show that [the witness] had been available to testify and that his testimony would have been of some benefit to the defense.'"); Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007) (conclusory allegation "that trial counsel failed to call a named material witness" and "failed to conduct the promised investigation" does not set out what evidence or information the witness or investigation would have revealed that reasonably could have changed result of the case). In this case, Pirtle filed a motion for new trial. The motion states only that Pirtle "was afforded ineffective assistance of counsel at trial." There was no post-conviction hearing on the motion for new trial. As was the case in Thompson, the record here provides no discussion of trial counsel's strategy and no explanation of the motivation behind counsel's decisions and actions. The record does not establish that Pirtle's trial counsel's performance fell below prevailing professional norms, nor does the record establish that her counsel's purported deficiency prejudiced her. Although there are rare cases in which a record on direct appeal is sufficient for an appellate court to make a decision on the merits of an ineffective assistance of counsel claim, this is not one of those cases. See Cannon, 252 S.W.3d at 349-50. We conclude Pirtle failed to meet her burden to overcome the strong presumption of reasonable assistance of counsel. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."). We overrule Pirtle's second issue.